Instead of deciding the matter ex-parte, the Tribunal must take fresh step to serve Hearing notice to the Assessee if it is returned by the Postal Authority with a remark that “there is nobody in the factory”
In the instant case, the Revenue filed an appeal against the Order of the Commissioner (Appeals) before the Hon’ble Tribunal. Pioneer Glass Industries (the Appellant) also filed a cross objectionin respect of the Revenue’s Appeal.
Thereafter, a notice was issued to the Appellant, which was returned with the endorsement of postal authorities that “there is nobody in the factory”.
Consequently, the Appellant could not appear before the Hon’ble Tribunal on the day of hearing. The Hon’ble Tribunal proceeded to decide the appeal on merits and allowed the appeal of the Revenue vide its Order dated February 3, 2011 and disposed off the cross objection of the Appellant.
Later on, the Appellant filed an application to the Hon’ble Tribunal for restoration of appeal, which was dismissed on ground that the Appellant’s cross objections had been considered while deciding the matter in favour of the Revenue. Being aggrieved, the Appellant preferred an appeal before the Hon’ble High court of Allahabad.
The Hon’ble High Court of Allahabad held that an endorsement by the postal authority that “there is nobody in the factory” cannot tantamount to refusal of the Appellant nor it can be read as factory is closed. The Tribunal ought to have taken fresh steps for service of notice to the Appellant in the manner prescribed under law. Hence, the Tribunal had committed an error by rejecting application of the Appellant.
It was further held that there is sufficient reason to recall the Order of Tribunal dated February 3, 2011 and for hearing the matter on merits afresh. Accordingly, the restoration application of the Appellant was allowed.